ITEM NO.
REPORT OF THE MONITORING OFFICER
TO THE STANDARDS COMMITTEE
ON Monday 5th March, 2007
TITLE :
REVISED MODEL CODE OF CONDUCT
RECOMMENDATIONS : Members are invited to consider and comment on the contents of the
report, the consultation paper and the proposed responses to the
questions posed. Subject to further comments from Members, the
Committee is invited.
1.
2.
To make a formal response to the consultation.
Note the timetable and potential implications for the Annual
Council Meeting.
EXECUTIVE SUMMARY: The report provides details of the proposed changes to the code of
conduct for Councillors and recommends responses to the
Government’s consultation on the proposed changes.
BACKGROUND DOCUMENTS : DCLG Consultation Paper on amendments to the Model Code
of Conduct
ASSESSMENT OF RISK:
Low
SOURCE OF FUNDING:
Not applicable
COMMENTS OF THE STRATEGIC DIRECTOR OF CUSTOMER AND SUPPORT SERVICES
(or his representative):
1. LEGAL IMPLICATIONS
CONTACT OFFICER :
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Provided by : Ian Sheard
Ian Sheard – 793 3084
Assistant Director (Legal)
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WARD(S) TO WHICH REPORT RELATE(S):
KEY COUNCIL POLICIES:
All
Corporate Standards
DETAILS:
1.0
BACKGROUND
1.1
The Department of Communities and Local Government (DCLG) published a
consultation paper seeking views on the draft of a proposed new model code of
conduct for local authority members on 22 January 2007. The closing date for
responses is 9 March.
1.2
The Government’s stated intention is “to put in place a clearer, simpler and more
proportionate code of conduct for members of Local Authorities which includes
changes to the rules on personal and prejudicial interests”. The changes are long
awaited and have been the subject of widespread interest.
1.3
The Local Government Act 2000 set the ethical framework for local government on a
statutory basis. Section 50 of the Act enabled the Secretary of State to introduce a
model Code of Conduct and subsequent sections required Councils to adopt their
own code on the basis of the model. This Council formally adopted the model code
of conduct in 2002 and it is incorporated into the Council’s Constitution. The
provisions of the code do not appear to have raised any significant problems of
compliance within the Council.
1.4
With the benefit of experience of the working of the code nationally since 2001, not
least its enforcement by the Standards Board for England (SBE) and decisions made
by the Adjudication Panel for England (APE) and the courts since, there has been
considerable interest in proposals for changes to the code.
1.5
Although the Standards Board for England consulted on the principles for a revised
code of conduct for Members, and the Government issued a discussion paper on the
revision in 2005, neither of those papers contained a draft revised text for the code
and the new draft text is not always in accordance with the previous consultations.
However, on the basis that these are matters on which there has been previous
consultation, the period for responses to the consultation has been reduced to just 6
weeks and it is clear that the Government intends to bring the amended code into
force in time for Local Authorities to adopt it at their annual meetings in early May
2007, before the enactment of the Local Government and Public Involvement in
Health Bill, probably in October 2007. The draft revised code appears to have been
drafted to avoid the need for further revision when the provisions of the Local
Government Public and Involvement in Health Bill are applied to extend the
application of the code to conduct in Members’ private lives. However, the timetable
for adoption is tight and the potential for confusion and further amendment to the
code remains.
2.0
DETAILS OF THE PROPOSALS
2.1
Circulated with this report are:
1.
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The proposed main changes to the Code (Appendix 1); and
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2.
Suggested responses to the specific questions posed by the consultation
paper (Appendix 2).
Members will have already received a copy of the consultation paper.
2.2
The draft Regulations involve the production of a single mandatory model code
(rather than the 4 current models).
2.3
The scope of the proposed new code of conduct is broadly unchanged. However, the
draft revised code seeks to

Reflect the recommendations of the SBE following their review of the current
code

Reflect APE and High Court decisions on interpretation (discrimination,
private capacity, disclosure in public interest)

Modify the effect of the Richardson decision to allow a Member to make
representations whilst having a prejudicial interest

Improve the structure and drafting of the code.

Be gender neutral

Improve some definitions
2.5
The draft revised code provides a number of relaxations from the requirements of the
current code. In particular it:

removes the obligation to report allegations of failure to comply with the code
(current para. 7) (The deletion of the duty on Members to report breaches by
other Member will be welcomed. It will not, of course, prevent Members from
reporting such breaches, but takes away the obligation to do so).

limits the obligation to disclose a personal interest of a family member, friend
or person having close personal association to those that the Member is
aware of, or ought reasonably to be aware of.

creates a new category of public service interest as to membership of another
relevant authority, public authority or body the Member is appointed to by the
authority.

provides for a Member, otherwise having a prejudicial interest, to attend a
meeting for the purpose of making representations, answering questions, or
giving evidence, provided the meeting agrees and subject to the Member
withdrawing after so doing. (This is not absolutely clear, but presumably a
personal interest still needs to be disclosed by the Member. Meetings will
require careful managing to ensure such Members are excluded from the
decision making part of the meeting).
2.6
The draft revised code also imposes additional obligations on Members such as:

Not to bully any person

Not to intimidate a person involved in proceedings under the code

Extends the meaning of political purposes in the use of the Authority’s
resources provision to specifically include ‘party political purposes’.

Extends the provision on use of the authority’s resources to include having
regard to the Local Authority Code of Publicity

An extended obligation to have regard to the advice of the Monitoring Officer
and the Chief Finance Officer.
2.7
The new provisions on bullying follow a concern by the SBE at the level of bullying
occurring within Councils. (The problem of bullying within Parish Councils has been
described as endemic and the Society of Local Council Clerks has recently adopted
an anti-bullying strategy). Clear guidance will be needed from the SBE, given that
the code does not clearly define bullying, in order for Members to understand what
types of behaviour are acceptable and what go beyond the bounds of acceptability.
2.8
The proposed main changes are summarised for ease of reference in Appendix 1. It
is assumed that many of the changes, particularly the relaxations, will be welcomed
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by Members. The consultation questions and some suggested responses are set
out in Appendix 2 for Members’ consideration.
3.0
OMISSIONS
3.1
The draft Code does not, as predicted, include the ten “General Principles” of Local
Government conduct as a preface, presumably because of legal difficulty in drafting,
but it would be legitimate for local authorities to reflect this locally within their
Constitutions, in order to identify the relationship between the General Principles and
the Code in terms of the ethical framework.
3.2
The opportunity to bring the application of the code and the law of bias closer
together has not been taken in the draft. It would be helpful if there was an express
reference in paragraph 9 of the code under the heading “Prejudicial interests” to the
fact that a Member should not participate in decision-making, notwithstanding that a
prejudicial interest does not arise, if such participation is likely to give rise to a real
possibility of bias. Such a provision would provide a direct link between the common
law test of bias and the member code, reinforcing the principles which need to be
applied by Members in determining whether to participate in decision making.
3.3
In practical terms there is generally a good understanding by Members of the code
and a familiarity with its provisions. It is however regarded by some as an allinclusive code governing the ability to participate in meetings and decision-making.
Clearly, this is not the case since the law of bias also is a significant consideration in
this area. Whilst the code cannot be expected necessarily to prescribe or proscribe
in the area of bias, it would be useful for the code explicitly to recognise the
existence of the bias provisions.
3.4
Whilst the inclusion of a definition of bias may be difficult to draft to reflect current
law, it would be possible to refer to the law of bias. As it stands, unless bias
amounts to disrepute (which is not clear cut), an act of bias by a Member that results
in a local authority decision being annulled, is excluded from the enforcement part of
the ethical framework. An additional clause in Para. 4(2) of the revised code could
include a finding of bias against a Member as conduct amounting to disrepute. It
would be sensible to add an additional exception in paragraph 9(2)(a) to public
service interests that would be prejudicial, on the lines that participation in the matter
would amount to bias or apparent bias.
Adding a short note e.g. to paragraph 11 along the lines: “(4) Notwithstanding the
provisions of this paragraph a member should have regard to the implications of the
law of bias, and any advice received in that respect, in considering his or her
participation in a meeting” would strike a balance between alerting Members to the
existence of another significant factor affecting their participation in meetings and
preventing action being taken in that regard under the code itself. The Committee’s
views on this issue are invited.
4.0
DRAFTING ASPECTS
4.1
Whilst the reconstruction of the interests’ part of the code (Part 2) helps to improve
clarity, it would seem sensible to go one stage further and include all the parts
dealing with ‘public service interests’ in a separate paragraph. Having different
definitions for “public service interest” (in 8(7)(a) and 9(4)) is also confusing.
4.2
There are a number of new phrases in the draft Code of Conduct which now require
definition, including –
a.
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“Close personal association” – Paragraph 7(c)(i) -this clearly extends beyond
mere friendship, but how far? Does “personal” in this context mean that it
does not include work colleagues? Given that case law was beginning to
build up on what constituted a “friend”, how useful is this addition?
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b.
c.
d.
e.
f.
“Family” – Paragraph 7(c)(i) - the current Code uses the word “relative” and
defines “relative”. The new Code uses “family”, but fails to define it. Is it the
member’s household, irrespective of blood relationship? Or is it blood
relatives even if living separately? What degree of separation takes an
individual outside the scope of “family”?
“Lobbying Organisation” – Paragraph 9(4)(b) - is it a lobbying organisation
because it occasionally lobbies, or does it have to lobby Members or Local
Authorities, or does it have to spend a specified proportion of its annual
expenditure on seeking to influence public opinion?
“Of a financial nature” – Paragraph 11(2) - what is it that makes an interest “of
a financial nature”? Is it that the Member or a friend etc., or an associated
body, stands to gain or lose financially in any way, or does the gain have to
be primarily financial, or more directly to the Member him or herself?
“Philanthropic Organisation” – Paragraph 9(4)(b) - Is this the same as “a body
directed to charitable purposes”, or does “philanthropic” extend that?
“Relates to” – This phrase is used repeatedly throughout the new code, in a
number of different contexts and its widespread use may create real problems
of interpretation for the future.
4.3
The effect of the dispensation in paragraph 8(2) generally is a concern. Members
are now accustomed to disclosing interests at the beginning of the meeting. There
does not seem to be any value gained by changing from disclosure at the beginning
whether the Member speaks or not. Curiously, in the new draft, if the Member does
not speak, there is no requirement to declare the public service interest. This seems
bizarre; it may seem very odd to a member of the public for one Member to disclose
an interest and another not (because s/he did not speak) when both take part in the
decision by voting. From an evidential aspect, in a subsequent investigation, the
question of whether a Member spoke or not will be more difficult to investigate, than
whether the interest was declared or not.
5.0
CONCLUSION
5.1
The draft revised Code of Conduct appears to be a conscientious attempt to improve
the present code and to resolve some of the issues which have arisen with it.
However, there are other issues and unresolved problem areas, not covered by the
consultation questions, which also require comment.
5.2
It is assumed that the new code will be introduced by regulations in April 2007.
There are no other scheduled meetings of this Committee before the Annual
Meeting. The timetable is tight and it is still debatable whether the new code will be
in place in time. Certainly there will be little or no time for training or familiarisation
with it prior to annual meetings.
6.0
RECOMMENDATIONS
6.1
This report provides an overview of the new provisions, and time has not allowed for
more detailed analysis. Members are invited to consider and comment on the
contents of the report, the consultation paper and the proposed responses to the
questions posed. Subject to further comments from members, the Committee is
invited to:
1.
2.
make a formal response to the consultation on the lines set out, and
note the timetable and potential implications for the Annual Meeting.
Alan Westwood
Monitoring Officer
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Appendix 1
THE PROPOSED MAIN CHANGES TO THE CODE ARE TO:
1.
Have one consolidated code covering all authorities (to replace the 4 codes currently
in existence).
2.
Remove the proscription on unlawful discrimination (on the grounds that the APE
cannot make a determination on that).
3.
Specifically proscribe bullying – about which the SBE has been concerned for some
time.
4.
Allow for the disclosure of confidential information where it is in the public interest to
do so.
5.
Require a Member not to bring the authority into disrepute. Offending conduct would
extend to that performed in the Member’s private capacity provided that:
a)
the conduct has been subject to a successful prosecution; and
b)
the current Local Government & Health Bill amends sections 49 and 52 of the
Local Government Act 2000. (This effectively overturns the Ken Livingstone
decision).
6.
Require regard to be paid to the Government’s local authority publicity code.
7.
Delete the requirement to report suspected breaches of the code by other Members.
8.
Require gifts and hospitality of over £25 in value to be registered in the register of
members’ interests. (Currently there is a separate register for such matters).
9.
Require the disclosure of such gifts or hospitality at a meeting within five years of
such registration.
10.
Define personal interests as including the well-being or financial position of the
Member, family, friend or ‘any person with whom the member has a close personal
association’ (This covers a range of personal, business and professional associates.
A close personal association is not defined. Is a friend a different relationship now?)
11.
Define a personal interest as one affecting the Member to a greater extent than the
majority of his or her ward residents (and thereby reduce the likelihood of there being
a declarable interest).
12.
Create a ‘public service interest’, defined as membership of another local authority or
a management or control position of a public authority or with reference to a body to
which the Member is appointed by the Council. (A public service interest is a
personal interest declarable if the Member speaks on an item in committee).
13.
Provide that a public service interest would not be a prejudicial interest barring
participation in debate, unless it affects the financial affairs of the body concerned or
it relates to an approval, consent, licence, permission or registration of that body.
14.
Provide that a Member with a prejudicial interest may, with the consent of the
meeting, attend a meeting for the purpose of making representations, answering
questions or giving evidence but must then withdraw from the room. (As noted in the
covering report, this will require careful management of the meeting).
15.
Proscribe the intimidation of complainants and witnesses in cases of complaint to the
SBE or Monitoring Officer.
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16.
Extend the exemptions where Members should not regard themselves as having
prejudicial interests to include:
a)
b)
c)
where indemnities are being considered;
the setting of council tax;
where the Member is being considered for the honorary award of Freeman.
17.
Provide that Members are excluded from scrutiny committees where decisions are
being considered of a body in which he or she took part.
18.
Enable a member to apply to the Monitoring Officer to obviate the need to register
‘sensitive information’ (e.g. employment in certain types of scientific research), where
it is perceived that there is a serious risk that the Member or a person who lives with
him or her, may be subjected to violence or intimidation.
19.
Enable a Member not to disclose the details of that ‘sensitive information’ when
declaring an interest in committee, (although there would still be a need to disclose
that there is a personal interest).
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Appendix 2
SUGGESTED RESPONSES TO THE SPECIFIC QUESTIONS
1.
Does the proposed text on the disclosure of confidential information strike an
appropriate balance between the need to treat certain information as
confidential, but to allow some information to be made public in defined
circumstances when to do so would be in the public interest?
The proposed amendment incorporates the requirements of Article 10(1) of the
European Convention on Human Rights (freedom of expression). In practice it will
be extremely difficult for a Member to weigh up the balance of competing interests of
preserving confidentiality on the one hand and the restricted number of cases where
it would be defensible to disclose that information on the other e.g. to make known
the occurrence of a criminal offence. It would be difficult to determine when
disclosure will be “reasonable and in the public interest”, given that this is the test
which local authorities are themselves applying when deciding whether or not
information should be within the public domain or should remain exempt.
As currently drafted, the code does not make it clear whether it is a two part test,
namely that the disclosure must be reasonable and in the public interest and made in
good faith, or whether there is a defence if either of these tests can be satisfied.
The paragraph also requires clarification so that the proscription applies solely to
those areas where the Member received the information in his or her official capacity
and not as a private individual or in any other capacity.
2.
Subject to powers being available to us to refer in the code to actions by
members in their private capacity beyond actions which are directly relevant to
the office of the Member, is the proposed text which limits the proscription of
activities in a Member’s private capacity to those activities which have already
been found to be unlawful by the courts, appropriate?
This suggests that the code only applies to activities in a Member’s private capacity,
which have already been found to be unlawful by the courts. However, the reading of
paragraph 4 of the Schedule may be wider than this and, whilst it may include
criminal offences, might also include other conduct, which constitutes disrepute.
There is a range of conduct which could arguably be said to bring a Member’s office
into disrepute which falls short of conduct capable of founding a criminal conviction
e.g. anti-social behaviour. However by referring to a criminal offence in paragraph 4
it suggests that there is a high threshold of behaviour which could be countenanced
before action under this paragraph of the code would be contemplated.
3.
Is the Code of Recommended Practice on Local Authority Publicity serving a
useful purpose? If the Publicity Code is abolished, do consultees think some
or all of its provisions should be promulgated in a different way, eg via
guidance issues by local government representative bodes, or should
authorities be left to make their own decisions in this area without any central
guidance? Should authorities not currently subject to the Publicity Code be
required to follow it., or should the current position with regard to them be
maintained?
In practice the Publicity Code is a useful tool which assists Local Authorities and
Members in addressing sensitive issues at sensitive times e.g. in the run up to
elections. Whilst the provisions of the publicity code need to be reviewed, such a
review could consider how best to assist authorities currently not subject to its remit.
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4.
Does the proposed text with regard to gifts and hospitality adequately combine
the need for transparency as well as proportionality in making public
information with regard to personal interests?
The provisions regarding gifts and hospitality seem excessive. In practice most
authorities maintain a separate gift and hospitality register, which is not open to
public inspection. To translate gifts and hospitality of a value of £25 into interests
requiring registration and declaration seems unnecessarily bureaucratic and
burdensome, particularly when a bunch of flowers, which are arguably a token of
appreciation rather than an imputation of ulterior motive, can cost £25 nowadays.
Furthermore, the requirement for disclosure of such an interest for a period of 5 years
after registration also seems excessive (not least for Members in remembering that
they had received such gifts or hospitality). The £25 should be increased and the
period reduced to, say, £50 and 2 years.
5.
Does the proposed text relating to friends, family and those with a close
personal association adequately cover the breadth of relationships which
ought to be covered, to identify the most likely people who might benefit from
decisions made by a Member, including family, friends, business associates
and personal acquaintances?
There has been difficulty in the existing code in Members determining who
constitutes a friend. This will be compounded by the new requirement to consider
not only friendship but also close personal associations. This will be particularly
difficult in the context of some areas where most people in the community know each
other. Very clear guidance will be required from the Standards Board on this, ideally
with a clear test which Members will find easy to apply.
It is always going to be difficult to describe adequately the concept that it is the close
association between a Member and other people involved in an issue under debate
which will give rise to the perception by onlookers of inappropriate dealing. In that
respect is is not clear what is added by the word ’personal’ in the phrase ‘close
personal association’.
6.
Would it be appropriate for new exceptions to be included in the text as
additions to the list of items which are not to be regarded as prejudicial?
Note: Three new items have been added. These seem sensible and to be welcomed.
Exemptions could be extended usefully in at least two respects.
7.
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1.
to expand para. 9 (2)(b)(i) and provide that a Member who is a tenant, lessee
or licensee generally would not have a prejudicial interest, save where the
debate specifically relates to his or her property. This would cover e.g.
allotments and garages and grazing licences which can be problematic in
some authorities.
2.
to extend para 9(2)(b)(vi) in respect of bestowing the title of Freeman not only
on a member, but on a spouse, friend or close associate. In practice the
candidates for such an award are likely, by virtue of the service they have
provided to the community, to have come into close association with
Members.
Is the proposed text relaxing the rules to allow increased representation at
meetings, including where Members attend to make representations, answer
questions, or give evidence, appropriate?
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It is illogical to make the intended exemption in the way proposed. Merely because
the Member is answering questions or making representations cannot logically affect
whether or not he or she has a prejudicial interest within the definition of that phrase
in paragraph 9(i). What is needed is a recognition that, despite the prejudicial
interest, the Member is not disbarred from answering questions and making
representations. In that respect the Member’s position is different from the instances
cited in para 9(2)(a) and (b). So, drafting that says “notwithstanding their prejudicial
interest, a Member may attend a meeting to make representation, answer questions
and give evidence” would be more helpful.
In practical terms the provision is likely to give rise to the need for very clear
procedures to be adopted by the meeting to ensure that the Member does withdraw
from the room at a particular point. It would be useful to clarify that withdrawal
should have taken place prior to a decision being reached. It is not clear whether the
Member may stay for the debate.
8.
Is there a better, more user-friendly way of ensuring the text is gender-neutral,
for example, would consultees consider that amending the wording to say
‘you’ instead of ‘he or she’ or ‘him or her’ would result in a clearer and more
accessible code for Members?
The draft code is written in language that is intended to be user friendly. It is clearer
and more understandable although the lack of definitions creates ambiguity in many
places.
Achieving gender neutral language is ideal, but the proposal to refer to the second
person (“you”) is likely to cause ambiguity. ‘He/she’, ‘his/her’ could simply be
replaced by ‘a/the Member’ ‘a/the Member’s’.
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